IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-51049

Summary Calendar

HAROLD PIATT,

Plaintiff–Appellant

v.

CITY OF AUSTIN; TOBY FUTRELL, In her official capacity as City Manager

of the City of Austin; STANLEY L. KNEE, In his official capacity as Police

Chief of the City of Austin; ART ACEVEDO, In his official capacity as Police

Chief of the City of Austin,

Defendants–Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:07–CV–520

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff–Appellant Harold Piatt brought suit against the City of Austin

(“the City”), City Manager Toby Futrell, former-Chief of Police Stanley Knee

(“Chief Knee”), and current Chief of Police Art Acevedo (collectively, “the

Appellees”), complaining that he was improperly passed over for appointment

to Assistant Police Chief in 2003 and 2006, and that this constituted racial

United States Court of Appeals

Fifth Circuit

F I L E D

August 5, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 10-51049 Document: 00511562989 Page: 1 Date Filed: 08/05/2011
No. 10-51049

discrimination in violation of federal, state and local law. After the district court

dismissedPiatt’s claims pertaining to the 2003 appointments as time-barred, the

parties tried Piatt’s remaining claims to the court in a three-day bench trial. 

The district court found that although Chief Knee had indeed used race as a

factor in making one of the 2006 appointments, he would have made the same

appointment even without any impermissible consideration of race. The court

awarded Piatt attorney’s fees and costs on his Title VII claim, see 42 U.S.C.

§ 2000e et seq., but it awarded no damages, finding that the Appellees had

established a valid mixed-motive defense as described in Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989). The court entered a take nothing judgment on

Piatt’s remaining claims. 

Piatt only appeals the district court’s judgment on his Title VII claim. He

contends that the Appellees did not meet their burden of proof in establishing

a mixed-motive defense to the 2006 race-conscious appointment. This appeal

requires us to determine whether the district court’s finding that the Appellees

had established such a defense is clearly erroneous. We find that it is not, and

we AFFIRM. 

I

This case arises from a series of municipal employment decisions. In 2003,

and again in 2006, Police Chief Stanley Knee, then-Chief of the Austin Police

Department (“the Department”), appointed two qualified candidates to serve on

his staff as Assistant Police Chiefs. As head of the Department, Chief Knee had

sole authority to select the Assistant Chiefs who would serve under him. See

TEX. LOCAL GOV’T CODE ANN. § 143.014(b). Aside from the requirement that he

select a candidate who met the minimum criteria for appointment set out in the

Texas Local Government Code and any applicable labor agreements, see id. at

§§ 143.014(c), (d)(1)–(3), Chief Knee’s discretion in selecting his Assistant Chiefs

was plenary. He was not required to conduct a formal application or selection

2

Case: 10-51049 Document: 00511562989 Page: 2 Date Filed: 08/05/2011
No. 10-51049

process, nor was any examination, skills assessment, or interview required on

the part of any candidate. Unlike all other police ranks, Assistant Chiefs serve

at the pleasure of the Police Chief and can be returned to the rank from which

they were appointed at the Chief’s discretion. Id. at § 143.014(g).

In 2003, Chief Knee evaluated the Department’s qualified officers and

appointed a Caucasian male and an African-American female to serve as

Assistant Chiefs. Three years later, Chief Knee selected two more officers to

serve as Assistant Chiefs after several personnel changes. When he made the

2006 appointments, 950 officers at all ranks were statutorily qualified for the

positions: 18 were Commanders, including Piatt. Chief Knee eventually selected

Commanders David Carter, a Caucasian, and Charlie Ortiz, a Hispanic, for

appointment to his staff. 

Piatt sought consideration for the Assistant Chief appointments in 2003

and 2006. But despite having consistently received average or above-average

performance evaluations and meeting the statutory criteria, Commander Piatt

was passed over on both occasions. 

Piatt filed suit against the City, Chief Knee, and others in June 2007. He

alleged that the Appellees had engaged in racial discrimination in their official

capacities in violation of Title VII of the Civil Rights Act of 1964, see 42 U.S.C.

§ 2000e et seq., and various other federal, state, and local laws. Piatt also made 1

claims against Chief Knee and City Manager Toby Futrell in their individual

capacities under 42 U.S.C. § 1983. 

The Appellees moved for summary judgment on all claims. The district

court found that Piatt’s claims relating to the 2003 appointments were barred

In addition to his Title VII claim, Piatt brought suit under 42 U.S.C. § 1983; the Texas 1

Commission on Human Rights Act, Tex. Labor Code. Ann. § 21.001 et seq., and the City of

Austin Unlawful Employment Practices ordinance, Austin, Tex. Code of Ordinances

§ 5–3–4(A)(1)–(2).

3

Case: 10-51049 Document: 00511562989 Page: 3 Date Filed: 08/05/2011
No. 10-51049

by the applicable statute of limitations, and the court granted summary

judgment on those claims accordingly. As to Piatt’s § 1983 claim, the court

granted summary judgment for Futrell in her individual capacity. The court left

for trial: (1) Piatt’s various claims against the City and the official capacity

defendants relating to the 2006 appointments; and (2) Piatt’s § 1983 claim

against Chief Knee, in his individual capacity, for his failure to select Piatt for

Assistant Chief in 2006.

At trial Chief Knee described his overall policing strategy, which

emphasized the use of small-area commands that focused on outreach and were

particularized to each community’s needs. Chief Knee explained that his 2006

appointment decisions were based on this strategy and that he sought to appoint

the officers he believed could interact with the community and best execute this

strategy. Chief Knee explained in detail that the motivating factors in his

decision to select Commander Ortiz were Ortiz’s communication skills and

ability to interact with the community. 

After a three-day bench trial, the district court found that the Appellees

had established a mixed-motive defense to Piatt’s Title VII claims, and that no

evidence supportedPiatt’s assertion—relating to his remaining claims—that the

City maintained an unwritten policy of racial set-asides. The court awarded

Piatt attorney’s fees and costs on his Title VII claim, but no damages. The court

also ordered that Piatt take nothing from the Appellees or Chief Knee, in his

individual capacity, on the other claims. This appeal followed. 

II

“The standard of review for a bench trial is well established: findings of

fact are reviewed for clear error and legal issues are reviewed de novo.” Kona

Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000). The district

court’s finding that the Appellees established a mixed-motive defense is a factual

finding that we review for clear error. See Thomas v. NFL Players Ass’n, 131

4

Case: 10-51049 Document: 00511562989 Page: 4 Date Filed: 08/05/2011
No. 10-51049

F.3d 198, 202–03 (D.C. Cir. 1997). “A finding is clearly erroneous if it is without

substantial evidence to support it, the court misinterpreted the effect of the

evidence, or this court is convinced that the findings are against the

preponderance of credible testimony.” Bd. of Trs. New Orleans Employers Int’l

Longshoremen’s Ass’n v. Gabriel, Roder, Smith & Co., 529 F.3d 506, 509 (5th Cir.

2008). We will only reverse under the clearly erroneous standard where, viewing

the evidence as a whole, “we have a definite and firm conviction that a mistake

has been committed.” Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th

Cir. 2000) (citation omitted). 

III

Piatt raises one issue on appeal—whether the district court erred in

finding that the Appellees had established a mixed-motive defense to Piatt’s

Title VII claim. Specifically, Piatt contends that the record contains no evidence 2

showing that Chief Knee would have appointed Commander Ortiz to Assistant

Chief in 2006 based solely on objective, race-neutral criteria. We disagree. 

Under Title VII, an unlawful employment practice is established when the

plaintiff demonstrates that race, color, religion, sex, or national origin was a

motivating factor for any employment practice, even though other factors also

motivated the practice. See 42 U.S.C. § 2000e–2(m). But even where a plaintiff

establishes an unlawful practice through proof at trial, his remedy is limited to

injunctive and declaratory relief, costs, and attorney’s fees if the employer can

demonstrate that it would have taken the same action in the absence of the

impermissible motivating factor. See 42 U.S.C. § 2000e–5(g)(2)(B)(i); accord

Garcia v. City of Houston, 201 F.3d 672, 676 (5th Cir. 2000). This employer’s

 Piatt does not challenge the district court’s summary judgment relating to the 2003 2

appointments, nor does he challenge the court’s judgments on his claims (other than the Title

VII claim) against the City and the official capacity defendants, or the § 1983 claim against

Chief Knee in his individual capacity. These claims are waived accordingly. See Askanase v.

Fatjo, 130 F.3d 657, 668 (5th Cir. 1997) (“All issues not briefed are waived.”). 

5

Case: 10-51049 Document: 00511562989 Page: 5 Date Filed: 08/05/2011
No. 10-51049

defense was discussed at length in Price Waterhouse v. Hopkins, 490 U.S. 228

(1989), and is commonly known as the mixed-motive defense. 

In Price Waterhouse, the Supreme Court explained that a mixed-motive

defense could be established in Title VII cases, like this one, where the employer

presents objective proof that it would have made the same employment decision

had it not taken into account the prohibited factor. Id. at 252. Moreover, the

legitimate reason must have been present at the time the decision was made. 

Id. And, it is not enough for the employer to show that the same decision would

have been justified; the employer must show that its legitimate reason would

have produced the same decision standing alone. Id. 

The crux of Piatt’s claim is that the record contains no objective evidence

showing that Chief Knee would have definitively made the same hiring decision

in the absence of any impermissible use of race. Piatt hangs his appeal on one

excerpt from Chief Knee’s trial testimony:

Q: If you hadn’t considered race in 2006, who would you have

promoted?

A: I would most likely have picked Charlie Ortiz.

This equivocation, Piatt suggests, “deals in probabilities” and fails to objectively

show that Chief Knee would have selected Ortiz. See, e.g., Appellant’s Br. at 12

(“At no time did Knee say that he ‘would have made the same decision in the

absence of discrimination.’”). But taking this testimony in context suggests

otherwise:

I would most likely have picked Charlie Ortiz. Let me explain why. 

We had just had a shooting in the southeast area which he was the

area commander. It was a very volatile time. Immediately

following the shooting, I went to a community meeting that lasted

for hours so I could tell the people in that community were very

upset. It was a very explosive situation. I not only got to see

Charlie Ortiz interact with some of the most vocal, angry people, but

I got to see the people that worked for him do the same thing. 

Within a few weeks of that meeting, Charlie Ortiz had worked that

6

Case: 10-51049 Document: 00511562989 Page: 6 Date Filed: 08/05/2011
No. 10-51049

community so well that we had a – I think it was a peace march in

which we had a rally at the community center where a few weeks

before people were yelling and screaming at us. Charlie had

organized that event. To see the progression from some of the same

people that marched with us that day, it was very impressive. 

When you – when you look at the pieces that go into making up a

team, those are the kinds of qualities that one Chief of Police or one

CEO needs to make sure that he’s got on his team. . . . I believe the

skills that Charlie displayed were skills that would clearly be

needed . . . .

The record also shows that Chief Knee considered Ortiz the best qualified to

execute his community focused policing strategy, whereas, Chief Knee and Piatt

shared different views about the merits of community-based policing. The

district court credited this and other testimony in finding that the Appellees had

established a valid Price Waterhouse mixed-motive defense by a preponderance

of the evidence. Based on the totality of the evidence, we cannot say that the

district court’s finding was clearly erroneous.

IV

The district court’s judgment is AFFIRMED.

7

Case: 10-51049 Document: 00511562989 Page: 7 Date Filed: 08/05/2011